Arthur Jordan Piano Company, Inc. v. Lewis

• Decision Date: 24 January 1930
• Citation: 154 A. 467,34 Del. 423
• Court: Delaware Superior Court
• Parties: ARTHUR JORDAN PIANO COMPANY, INCORPORATED, a corporation created by and existing under the laws of the State of Virginia, v. JAMES E. LEWIS

154 A. 467

34 Del. 423

ARTHUR JORDAN PIANO COMPANY, INCORPORATED, a corporation created by and existing under the laws of the State of Virginia, v. JAMES E. LEWIS

Superior Court of Delaware, New Castle County

January 24, 1930

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Superior Court for New Castle County, January Term, 1930.

Summons Case, No. 21, November Term, 1927.

Action by the plaintiff to recover $ 2,267.00 with interest from April 16, 1925, being the alleged balance due on the purchase price of a musical instrument known as an American Fotoplayer.

The instrument in question was purchased under a conditional sale contract and was for the use of the defendant in his theatre at Middletown, Del. The total agreed purchase price was $ 3,600, subject to a credit allowance of $ 400 for the old instrument which had been in the defendant's theatre, and was to be paid in weekly installments until fully paid.

The plaintiff, also, admitted credits on the purchase price amounting to $ 933; this left a balance due, according to the claim of the plaintiff, of $ 2,267.

The conditional sale contract sued on was admitted in evidence and in addition to the title clause among other things provided:

"Said Vendee agree to pay to the said Vendor, at its office, 1239 G. St., N. W., Washington, D. C., the sum of Three Thousand six hundred Dollars ($ 3,600.00); Four hundred dollars on delivery of instrument ($ 400.00) to be paid in cash, the receipt of which is hereby acknowledged and the balance of ($ 3,200.00) Three thousand two hundred dollars with six per cent. interest thereon, to be paid in weekly installments of ($ 25.00) twenty-five dollars principal, and average weekly interest of Two dollars ($ 2.00) total Twenty-seven dollars ($ 27.00) to be due and payable on the Second day of each week beginning day of January, 1922, until paid in full. Upon the failure to pay any of said installments when and as due together with interest thereon, the entire amount shall forthwith immediately become due and payable, at the option of the Vendor.

"It is understood that this agreement is an original undertaking and covers all agreements between the parties."

The defendant admitted the execution of the contract, the delivery of the Fotoplayer and its acceptance by him, but claimed that he was entitled to a further credit on the purchase price of $ 2,112.50. In support of this contention he, in substance, testified that when he purchased the instrument in question for his Middletown theatre, he also purchased an organ for the Plaza Theatre Corporation of Milford, Delaware, of which corporation he was the president; that the purchase price of such organ was $ 5,250, and that the agent of the plaintiff had then agreed to allow him a credit of twenty-five per cent on the total purchase price of the two organs if he would use his best efforts to advertise the plaintiff's organs and pianos throughout the State of Delaware, for a reasonable time, and to recommend such instruments to prospective purchasers.

The defendant further testified that he had fully performed his part of this independent or collateral agreement with the plaintiff's agent, but that the plaintiff company had failed to allow him the credit or allowance of $ 2,112.50 agreed upon. He admitted, however, that after deducting the credit claimed by him, he still owed the plaintiff company the sum of $ 54.50, with lawful interest from April 16, 1925.

The following letter from Ricksacker, the plaintiff's agent who made the sale of the musical instrument in question, referred to in the contract sued on, was offered in evidence, by the defendant, and admitted without objection:

"Mr. Arthur Lewis, c/o Robert Morton Organ Co., 1560 Broadway, New York, N. Y.

"Dear Arthur: I have your letter of the fifth regarding the deal which I made for the Arthur Jordon Piano Company to Mr. Lewis at Middletown and Milford, Del.

"This sale was made quite sometime ago but if my impression is correct at the time the sale was made that in order to get established in that territory we agreed to allow an advertising discount which discount was usually in the neighborhood of from one to two thousand dollars, sometimes if more than one deal we would allow a total of $ 2500.

"This is what my impression is as to the deal and I regret that I cannot write you more details. Trusting that this finds you enjoying the best of health, with kind personal regards, I am,

"Very truly yours,

"F. K. Ricksacker."

Before the case was submitted to the jury, Logan, attorney for the plaintiff, moved to strike out the defendant's testimony as to the alleged agreed credit of $ 2,112.50.

This motion was based on the contention that the authority of Ricksacker to enter into such agreement had not been shown. In support of this motion, Mr. Logan made the following argument:

Parties dealing with an agent, known to be such by them, must take notice of the nature and extent of his authority, and are bound at their peril to notice the limitations upon the authority granted. Mechem on Agency (2d Ed.), vol. 1, §§ 742, 743, etc.; Brager v. Levy, 122 Md. 554, 90 A. 102; American Mailing, etc., Corp. v. Widener, 260 Pa. 375, 103 A. 875; Moore v. Luzerne County, 262 Pa. 216, 105 A. 94; Smith v. Myers, 130 Md. 64, 99 A. 938; Milwaukee, etc., Co. v. Coal Co., 294 Pa. 238, 144 A. 100; Hann v. Freestone, 99 N. J. Law 357, 123 A. 701; Sloan v. Brown, 228 Pa. 495, 77 A. 821, 139 Am. St. Rep. 1019.

An agent authorized to sell cannot make any other contract which will be binding on his principal. National Cash Register Co. v. Brainson, 37 R. I. 462, 93 A. 645; Davison v. Parks, 79 N.H. 262, 108 A. 288; Clark v. People's Bank, 136 Md. 263, 110 A. 518; Brager v. Levy, 122 Md. 554, 90 A. 102; Auto Outing Co. v. McFrederick, 146 Md. 106, 125 A. 886; E. D. Keyes & Co. v. U. P. Tea Co., 81 Vt. 420, 71 A. 201.

One seeking to charge a principal for an agent's act must prove the agent's authority to so bind his principal. E. R. Thomas, etc., Co. v. Seymour, 92 Conn. 412, 103 A. 122; Shields v. Hitchman, 251 Pa. 455, 96 A. 1039; American Mailing, etc., Corp. v. Widener, 260 Pa. 375, 103 A. 875. See Hann case, supra.

Existence of agency for one purpose will not establish existence for another. Oxweld Acetylene Co. v. Hughes, 126 Md. 437, 95 A. 45, L. R. A. 1916B, 751, Ann. Cas. 1917C, 837; Deane v. Big Spring, etc., Co., 138 Md. 388, 113 A. 891.

Declarations of agent not competent to prove his authority. Curran v. Nat. Life Ins. Co., 251 Pa. 420, 96 A. 1041; Hileman v. Falck, 263 Pa. 351, 106 A. 633; Look v. Watson, 117 Me. 476, 104 A. 850; Dearholt Motor, etc., Co. v. Merritt, 133 Md. 323, 105 A. 316; Roland v. People's Bank, 134 Md. 218, 106 A. 570; Siller v. Philip, 107 Conn. 612, 141 A. 872; Beaudette v. Cavedon, 50 R. I. 140, 145 A. 874; Kroll v. Phila., 240 Pa. 131, 87 A. 292; First Nat. Bank v. Bertoli, 87 Vt. 297, 89 A. 359, Ann. Cas. 1917B, 590; Taplin & Rowell v. Harris, 88 Vt. 15, 90 A. 956; Oxweld Acetylene Co. v. Hughes, 126 Md. 437, 95 A. 45, L. R. A. 1916B, 751, Ann. Cas. 1917C, 837; Leonard v. Standard Aero Corp., 95 N. J. Law 235, 112 A. 252; Geremia v. Targlianetti, 45 R. I. 197, 121 A. 121; Deane v. Big Spring Distilling Co., 138 Md. 388, 113 A. 891; and Wilson v. Kelso, 115 Md. 162, 80 A. 895.

As Mr. Southerland contends that the parol agreement entered into between Ricksacker and the defendant was a separate agreement having its own separate consideration and was not related to the agreement upon which the plaintiff is bringing suit, his authorities that evidence of a collateral agreement is admissible where such agreement constituted a part of the consideration of the written agreement would not be applicable. If, however, and as the plaintiff contends, the parol agreement is merely an attempt to vary and modify the terms which have been reduced to writing and is an attempt to show that there is another agreement inconsistent with the written agreement, then the parol agreement would be inadmissible.

"Consistency of Agreement with Writing. In order to let in evidence of a collateral agreement between the parties, such agreement must be consistent with the terms of the writing; if the evidence tends to vary or contradict the terms of the written instrument or to defeat its operation, it cannot be received. With respect to this principle it has been said that the implied conditions of a contract are as much a part of its terms as the written parts, and the rule which forbids the proof of a collateral parol agreement which is inconsistent with the written terms equally forbids the proof of one which is inconsistent with its implied condition." 22 C. J. 1248. Numerous cases cited.

"An express statement in the writing that it constitutes the entire agreement between the parties is of course sufficient to exclude parol evidence to show a further agreement with respect to the same subject matter; and conversely, where the writing expressly recognizes the existence of other agreements between the parties, these may be shown." 22 C. J. 1253. Numerous cases cited.

"Completeness of Writing. In order to let in parol evidence of collateral agreements relating to the same subject matter as a written agreement between the same parties, it must appear that the writing was not intended to embrace the entire agreement of the parties. The only criterion of the completeness of a writing as a full expression of the agreement of the parties is the writing itself. If it imports on its face to be a complete expression of the whole agreement--that is, contains such language as imports a complete legal obligation-- it is conclusively presumed that the parties have introduced into it every material term, and parol...